Opinion
3:24-CR-5-TAV-DCP
06-12-2024
REPORT AND RECOMMENDATION
Debra C. Poplin United States Magistrate Judge
This case is before the undersigned for report and recommendation on Defendant Bradley John Keller's Motion to Dismiss Indictment [Doc. 24]. See 28 U.S.C. § 636(b). Defendant is charged in a single-count Indictment alleging he is a convicted felon who possessed a firearm and ammunition on October 29, 2023, in violation of 18 U.S.C. § 922(g)(1) [Doc. 10 p. 1]. Defendant argues that § 922(g)(1) is unconstitutional both on its face and as applied because it violates his Second Amendment right to bear arms. He contends that despite his status as a felon, his possession of firearms in his home is presumptively protected by the Second Amendment and that laws banning the possession of firearms by persons previously convicted of crimes lack a historic basis in the founding era. Accordingly, Defendant contends the Indictment must be dismissed.
For the reasons discussed herein, the undersigned finds § 922(g)(1) remains constitutional in the wake of recent Supreme Court case law and is constitutionally applied to Defendant Keller's possession of a firearm on October 29, 2023. Accordingly, the Court respectfully recommends that Defendant's motion to dismiss [Doc. 24] be denied.
I. BACKGROUND
According to the Government, officers went to Defendant's Monroe County home on October 29, 2023, after Defendant told the 9-1-1 dispatcher that he would “handle” a neighbor's noisy bonfire and that “‘someone's fixing to die'” [Doc. 27 pp. 1-2]. The officers asked Defendant to come out of his home using a public address system [Id. at 2]. Defendant came onto his porch with a shotgun and fired at the officers six times [Id.]. Following Defendant's subsequent arrest, officers entered Defendant's home with the consent of his wife and retrieved two shotguns and one rifle [Id.]. Defendant denies these facts generally and contends that he did not know that officers were in his yard [Doc. 31 p. 1]. Defendant agrees, however, that his § 922(g)(1) charge arises out of his alleged possession of firearms in his home [Doc. 24 p. 17].
In 2011, Defendant entered a guilty plea to distribution of oxycodone and hydrocodone, possession of oxycodone and hydrocodone with intent to distribute, and possession of a firearm in furtherance of drug trafficking [No. 3:10-CR-81-TAV-HBG, Doc. 20, Judgment]. The factual basis for Defendant's plea agreement details two controlled buys at Defendant's home [No. 3:10-CR-81-TAV-HBG, Doc. 15 pp. 3-4]. During the execution of a search warrant for Defendant's residence, Defendant had oxycodone and hydrocodone pills, $280, and a loaded handgun in his pants pockets [Id. at 4]. The Government proffers that Defendant Keller also has prior felony convictions for reckless endangerment with a weapon and possession of methamphetamine for resale [Doc. 27 p. 8]. In oral argument, the Government also noted that Defendant has a prior felony conviction for statutory rape.
In oral argument, defense counsel said Defendant has prior felony convictions for reckless endangerment, statutory rape, a federal drug felony, possession of a firearm in furtherance of drug trafficking related to the federal drug felony, and a state drug felony.
On March 21, 2024, Defendant moved to dismiss the Indictment, which charges him with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) [Doc. 24]. Relying on New York State Rifle & Pistol Assoc. v. Bruen, 597 U.S. 1 (2022), Defendant argues that § 922(g)(1) violates his rights under the Second Amendment because he is one of “the people” protected by the plain text of the Second Amendment and the Government can show no “relevantly similar” historical analogue for a permanent ban on the possession of firearms by a felon [Id. at 717]. Defendant asserts that § 922(g)(1) is unconstitutional both on its face and as applied to him [Id. at 1, 5].
The Government responds in opposition, asserting that § 922(g) is presumptively lawful under pre-Bruen Supreme Court and Sixth Circuit precedent, which was not altered by the Bruen case [Doc. 27 pp. 2-7]. It also asserts that convicted felons do not enjoy the protections of the Second Amendment, but even if they did, relevantly similar laws from the founding era reveal that bans on the possession of firearms by felons are consistent with this Nation's historical tradition of firearms regulation [Id. at 9-16].
Defendant filed a reply on May 10, 2024, again arguing that felons are protected by the Second Amendment and the Government's proffered analogues are materially different from § 922(g)(1) [Doc. 31 pp. 2-13].
The parties appeared for a motion hearing on May 15, 2024. Assistant United States Attorneys Miriam Johnson and Samuel Fitzpatrick appeared on behalf of the Government. Assistant Federal Defender Jonathan A. Moffatt represented Defendant, who was also present. The Court heard oral argument on the motion to dismiss and, thereafter, took the matter under advisement.
I. ANALYSIS
The Second Amendment provides that “[a] well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.” U.S. Const., Amt. II. In New York State Rifle & Pistol Assoc. v. Bruen, the Supreme Court clarified the test for determining whether a firearm regulation violates the rights guaranteed by Second Amendment. 597 U.S. 1, 24 (2022). “When the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct.” Id. If the regulated conduct is covered by the Second Amendment, “[t]he government must then justify its regulation by demonstrating that it is consistent with the Nation's historical tradition of firearm regulation.” Id.
Defendant Keller challenges the constitutionality of § 922(g)(1), which bans felons from possessing firearms [Doc. 24 p. 2]. He argues that the statute is unconstitutional both on its face and as applied because it interferes with his Second Amendment right to possess a firearm in his home for self-defense [Id.].
A defendant may challenge a defect in an indictment, including the constitutionality of a charged offense, by pretrial motion so long as “the basis for the motion is then reasonably available and the motion can be determined without a trial on the merits.” Fed. R. Crim. P. 12(b)(3)(B); United States v. Bivens, No. 1:22-cr-23, 2023 WL 8101846, at *1 (E.D. Tenn. Nov. 21, 2023) (analyzing as-applied challenge to § 922(g)(1)). A law can be unconstitutional either on its face or as applied. Id. “A statute is facially unconstitutional ‘if it is unconstitutional in all its applications.'” Id. (quoting Wash. State Grange v. Wash. State Repub. Pty, 552 U.S. 442, 449 (2008)). An as-applied challenge, on the other hand, argues the statute is unconstitutional in its application to a particular defendant's alleged conduct. Speet v. Schuett, 726 F.3d 867, 872 (6th Cir. 2013); Bivens, 2023 WL 8101846, at *1. In addressing a pretrial motion to dismiss a charge, the Court takes the facts alleged in the indictment as true. United States v. Palma, 58 F.4th 246, 250 (6th Cir. 2023) (When a defendant moves to dismiss an indictment, the court “take[s] the government's allegations as true and do[es] not test the evidence behind its claims.”); United States v. McAuliffe, 490 F.3d 526, 531 (6th Cir. 2007).
The undersigned first examines the changes to Second Amendment jurisprudence wrought by Bruen before turning to whether Bruen alters the constitutionality of § 922(g)(1) either generally or as applied to Defendant Keller. The answer to both questions is no.
A. Second Amendment Jurisprudence
In District of Columbia v. Heller, the Supreme Court explained that the rights afforded by the Second Amendment are not restricted to service in a militia, but the Second Amendment confers an individual right to “law-abiding, responsible citizens to use arms in defense of hearth and home.” 554 U.S. 570, 635 (2008). “Like most rights, [however,] the right secured by the Second Amendment is not unlimited.” Id. at 626. Thus, the Supreme Court recognized that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons,” and it characterized statutes prohibiting possession of firearms by felons as “presumptively lawful regulatory measures[.]” Id. at 626-27 & n.26. Two years later, the Supreme Court held the Fourteenth Amendment incorporated the Second Amendment right recognized in Heller. McDonald v. Chicago, 561 U.S. 742, 791 (2010). There, the Supreme Court repeated its “assurances” from Heller “that our holding did not cast doubt on such longstanding regulatory measures as ‘prohibitions on the possession of firearms by felons and the mentally ill[.]'” Id. at 786 (quoting Heller, 554 U.S. at 626-27)).
After the Supreme Court's decision in Heller, the Sixth Circuit adopted a two-part test for evaluating the constitutionality of a firearms regulation. United States v. Greeno, 679 F.3d 510, 518-19 (6th Cir. 2012), abrogated by Bruen, 597 U.S. at 19-20. Under this test, the court first examined whether the challenged regulation “burdens conduct that falls within the scope of the Second Amendment right as historically understood.” Id. at 518. Second, if the regulated activity was protected by the Second Amendment or “if the historical evidence [wa]s inconclusive,” the court examined the strength of the government's interest in regulating Second Amendment rights under an appropriate level of scrutiny. Id.
Also, following Heller, the Sixth Circuit repeatedly upheld the constitutionality of § 922(g)(1), relying on Heller's designation of such statutes as “presumptively lawful”. United States v. Goolsby, No. 21-3087, 2022 WL 670137, at *2-3 (6th Cir. Mar. 7, 2022) (rejecting an as-applied challenge to § 922(g)(1)); United States v. Carey, 602 F.3d 738, 741 (6th Cir. 2010); United States v. Whisnant, 391 Fed.Appx. 426, 430 (6th Cir. 2010); United States v. Khami, 362 Fed.Appx. 501, 507-08 (6th Cir. 2010); United States v. Frazier, 314 Fed.Appx. 801, 807 (6th Cir. 2008). “Heller states that the Second Amendment right is not unlimited, and, in fact, it is specifically limited in the case of felon prohibitions.” Carey, 602 F.3d at 741 (citing Heller, 554 U.S. at 626-27). In so holding, our appellate court “emphasized the government's ‘compelling' interest in ‘protecting the community' by ‘keep[ing] firearms out of the hands of presumptively risky people.'” Goolsby, 2022 WL 670137, at *2 (quoting Tyler v. Hillsdale Cnty. Sheriff's Dep't, 837 F.3d 678, 693 (6th Cir. 2016) (en banc) (lead opinion) (internal citation omitted)).
In June 2022, the Supreme Court decided Bruen, recognizing the Second Amendment protection addressed in Heller extended beyond the home and clarifying the test to evaluate the constitutionality of firearm regulations. 597 U.S. at 10, 22-24. Bruen held that “the Second and Fourteenth Amendments protect an individual's right to carry a handgun for self-defense outside the home.” Id. at 10. Bruen also restated the test for determining whether a firearm regulation impinges upon the rights afforded by the Second Amendment, observing that courts that weigh the strength of the governmental interest in regulating firearms are “inconsistent with Heller's historical approach[.]” Id. at 24 (stating that the second step that weighs the governmental interest is “one step too many”). When an individual's conduct is within the scope of the plain text of the Second Amendment, the Second Amendment “presumptively protects that conduct.” Id. If the regulated conduct is covered by the Second Amendment, “[t]he government must then justify its regulation by demonstrating that it is consistent with the Nation's historical tradition of firearm regulation.” Id.; United States v. Ramadan, No. 22-1243, 2023 WL 6634293, at *2 (6th Cir. Oct. 12, 2023) (In applying Bruen, courts must determine “(1) whether the Second Amendment's plain text protects the conduct and, if so, (2) whether the government can justify the law by demonstrating consistency with the Nation's history of firearm regulation.”).
While reviewing its analysis in Heller, “the Supreme Court [in Bruen] reiterated the limitation it noted in Heller-that ‘the right secured by the Second Amendment is not unlimited.'” United States v. Atkins, No. 2:23-cr-20126-MSN, 2023 WL 9166580, at *2 (W.D. Tenn. Dec. 13, 2023) (quoting Bruen, 597 U.S. at 21 (quoting Heller, 554 U.S. at 626)). Thus, the Supreme Court explained that “‘[f]rom Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.'” Bruen, 597 U.S. at 21 (quoting Heller, 554 U.S. at 626); Atkins, 2023 WL 9166580, at *2 (quoting Bruen).
As the Government points out [Doc. 27 pp. 4-5], the separate concurring and dissenting opinions in Bruen also uphold the presumptive lawfulness of statutes prohibiting felons from possessing firearms as recognized in Heller. Bivens, 2023 WL 8101846, at *3. In his concurring opinion, Justice Alito states that Bruen's holding “that a State may not enforce a law . . . that effectively prevents its law-abiding residents from carrying a gun for” self-defense does not “disturb[] anything that we said in Heller or McDonald . . . about restrictions that may be imposed on the possession or carrying of guns.” Bruen, 597 U.S. at 71-72 (J. Alito, concurring). In a separate concurring opinion, Justice Kavanaugh, joined by Chief Justice Roberts, reiterates the statement from Heller that “‘the right secured by the Second Amendment is not unlimited” and that “‘nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons[.]'” Id. at 81 (quoting Heller, 554 U.S. at 626-27) (J. Kavanaugh, concurring). Finally, in his dissent, Justice Breyer, joined by Justices Sotomayor and Kagan, also affirmed that “the Court's opinion today . . . cast[s] no doubt on that aspect of Heller's holding” that laws prohibiting felons from possessing firearms are “presumptively lawful.” Id. at 129 (J. Breyer, dissenting). Thus, a “majority of the Supreme Court agrees - the Second Amendment allows laws that prohibit felons from possessing firearms.” Bivens, 2023 WL 8101846, at *3; see also United States v. Bowers, No. 22-6095, 2024 WL 366247, at *3 (6th Cir. Jan. 31, 2024) (observing that in Bruen, five justices joined in opinions reaffirming Heller's statement that laws banning the possession of firearms by prior felons are “presumptively lawful”).
With these principles in mind, the Court turns to the arguments in this case.
B. Section 922(g)(1) Remains Presumptively Lawful
Defendant contends that § 922(g)(1) is unconstitutional on its face because it violates his Second Amendment right to keep and bear arms [Doc. 24 p. 5]. As discussed above, the Supreme Court in Heller characterized statutes prohibiting possession of firearms by felons as “presumptively lawful regulatory measures[.]” Id. at 626-27 & n.26. Relying on Heller, the Sixth Circuit has repeatedly held that § 922(g)(1) is constitutional. See, e.g., Carey, 602 F.3d at 741. This pre-Bruen case law remains binding on this Court for two primary reasons: (1) Bruen did not abrogate Heller and (2) Sixth Circuit cases upholding the constitutionality of § 922(g)(1) were not based upon the means-ends scrutiny test abrogated by Bruen. United States v. Richards, No. 1:23-cr-58, 2024 WL 1678942, at *2 (S.D. Ohio Apr. 18, 2024) (also noting that the regulations at issue in Bruen were not felon disarmament laws); see also United States v. Vaughn, No. 23-5790, 2023 WL 9789018, at *1 (6th Cir. Sept. 28, 2023) (affirming that Carey remains binding after Bruen).
Before delving into the continued viability of pre-Bruen caselaw, the Court observes that the Sixth Circuit has yet to analyze the constitutionality of § 922(g)(1) under the Bruen test. See United States v. Storck, No. 23-5684, 2024 WL 2217903, at *8 (6th Cir. May 16, 2024); United States v. Johnson, 95 F.4th 404, 416 (6th Cir.) (observing that “[a]fter Bruen, we have not addressed the constitutionality of § 922(g)(1)”), cert. denied, 2024 WL 2805842 (2024). The Sixth Circuit has rejected several Second Amendment challenges to § 922(g)(1) on plain-error review, finding that no Sixth Circuit precedent holds § 922(g)(1) to be unconstitutional and “it is unclear that Bruen dictates such a result.” Johnson, 95 F.4th at 417 (determining the circuit split on whether § 922(g)(1) is unconstitutional in light of Bruen precludes a finding of plain error); see also Storck, 2024 WL 2217903, at *8 (quoting Johnson); United States v. Alvarado, 95 F.4th 1047, 1052-53 (6th Cir. 2024) (characterizing the constitutionality of § 922(g)(1) after Bruen as “unsettled” but observing that given the circuit split on the issue, any error in allowing a § 922(g)(1) conviction to stand is not plain); United States v. Heard-White, No. 23-1146, 2024 WL 1049478, at *5 (6th Cir. Mar. 11, 2024) (“A circuit split, like we have here, ‘precludes a finding of plain error.'” (citation omitted)); Bowers, 2024 WL 366247, at *3 (declining to find plain error when neither the Supreme Court, nor this court has addressed the issue and a circuit split exists). Accord United States v. Rangel-Tapia, No. 23-1220, 2024 WL 966385, at *3 (6th Cir. Mar. 6, 2024) (rejecting Bruen challenge to § 922(g)(5)(A) under plain error review in part because no binding precedent exists on the issue); Ramadan, 2023 WL 6634293, at *3 (6th Cir. Oct. 12, 2023) (reviewing a Bruen challenge to § 922(j) & (k) for plain error and concluding that “assuming [defendant's] conduct is covered by the plain text of the Second Amendment, [his] historical evidence is not enough to answer Bruen's historical inquiry to such a degree that the statutes are plainly unconstitutional”).
“[T]he constitutionality of § 922(g)(1) is currently before the Sixth Circuit in United States v. Goins (No. 23-5848) with oral argument having taken place on March 21, 2024.” United States v. Williams, No. 23-cr-20199, 2024 WL 1977151, at *1 (E.D. Mich. May 2, 2024) (granting stay of dismissal of the indictment for government to take an interlocutory appeal).
Outside of plain-error review, however, the appellate court has reasoned that Bruen did not abrogate prior Sixth Circuit case law relying on Heller. See Vaughn, 2023 WL 9789018, at *1 (6th Cir. Sept. 28, 2023). In Vaughn, the Sixth Circuit addressed whether defendant's Second Amendment challenge to § 922(g)(1) raised “a substantial question of law or fact” under 18 U.S.C. 3143(b), which governs a defendant's release or detention pending direct appeal. Id. Our appellate court held that the defendant did not raise a substantial question because it had “unambiguously held in United States v. Carey, 602 F.3d 738, 741 (6th Cir. 2010), that felon-in-possession statutes do not violate the Second Amendment, and that remains the binding law in this circuit.” Vaughn, 2023 WL 9789018, at *1. The court observed that while it has yet to revisit the issue after Bruen, “the vast majority of courts to have reconsidered the constitutionality of § 922(g)(1) post-Bruen have upheld it[, and accordingly,] Carey remains the precedent in this circuit.” Id. (citing United States v. Gleaves, 654 F.Supp.3d 646, 648-49 (M.D. Tenn. 2023) (collecting cases as of Feb. 6, 2023)).
Defendant argues that the Sixth Circuit's recent plain-error decisions reveal the constitutionality of § 922(g)(1) is now unsettled, rather than governed by pre-Bruen caselaw [Doc. 27 p. 18]. The plain-error cases, however, support a finding that the facial constitutionality of § 922(g) remains the law in this circuit because a conviction under § 922(g)(1) is not plainly erroneous. See Heard-White, No. 23-1146, 2024 WL 1049478, at *5 (“This court has relied on District of Columbia v. Heller, 554 U.S. 570 (2008), to repeatedly hold that felon-in-possession prohibitions do not violate the Second Amendment.”); see also United States v. Wilkinson, No. 7:23-cr-020, 2024 WL 1506825, at *3 (E.D. Ky. April 8, 2024) (finding Bowers “seemingly endorsed the longstanding prohibition on the possession of firearms by felons by acknowledging Heller's proclamation that the statute ‘remain[s] presumptively lawful.'”). Moreover, Bruen did not overturn Heller on which the pre-Bruen caselaw was based. Richards, 2024 WL 1678942, at *2; see Bowers, 2024 WL 366247, at *3 (observing that in Bruen, “five current Justices joined opinions indicating that ‘longstanding prohibitions on the possession of firearms by felons' remain ‘presumptively lawful.'” (citation omitted)). Instead, Bruen clarified the text-and-history test, which it established in Heller, and rejected the means-ends-scrutiny approach previously used in many circuits, including the Sixth. Richards, 2024 WL 1678942, at *2; United States v. Freeman, No. 23-20258, 2024 WL 348517, at *3 (E.D. Mich. Jan. 30, 2024); see also Wilkinson, 2024 WL 1506825, at *3 (“Although the Supreme Court altered the framework for evaluating challenges under the Second Amendment, the Bruen test is merely a more direct iteration of the original opinion [in Heller].”). Carey did not employ the rejected means-ends scrutiny test, but, instead, reasoned from dicta in Heller, specifically Heller's assertion that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons.'” Id. at *4 (quoting Carey, 602 F.3d at 741 (in turn quoting this language from Heller, 554 U.S. at 626)).
After Bruen, “[t]he clear weight of authority suggests Heller['s statement that felon-inpossession statutes are presumptively lawful] was not disturbed by Bruen.” Bivens, 2023 WL 8101846, at *8. Cases in this district hold that Carey remains binding precedent until the Sixth Circuit addresses the constitutionality of § 922(g)(1) under Bruen. Crayton v. United States, No. 1:22-CR-59, 2024 WL 1623094, at *2 (E.D. Tenn Apr. 15, 2024) (McDonough, CDJ)(“[T]he Court is bound to follow Sixth Circuit precedent holding Section 922(g) constitutional unless that precedent is expressly overruled.”); Bivens, 2023 WL 8101846, at *8 (Atchley, DJ) (“Absent contrary direction, this Court continues to follow the Sixth Circuit's interpretation of Heller [in cases such as Carey]”).
In United States v. Kurtz, the Court denied a motion to dismiss the indictment without employing the two-step Bruen test because the Court is bound by Sixth Circuit, preBruen precedent. No. 1:23-CR-23-TRM-SKL, Doc. 24 p. 2 (E.D. Tenn. Dec. 5, 2023) (McDonough, CDJ).
In oral argument, defense counsel cited United States v. Wright, in which the Court conducted a Bruen analysis but distinguished caselaw relating to the constitutionality of § 922(g)(1) because the defendant challenged the constitutionality of § 922(j), which prohibits possession of a stolen weapon. Nos. 3:23-CR-23-KAC-JEM & 3:22-CR-49-KAC, 2024 WL 422156, at *2 n.2 (E.D. Tenn. Feb. 5, 2024) (Crytzer, DJ) (observing “[d]efendant provided no case to support the proposition that the potential unconstitutionality of 922(g)(1) could impact his Motion to Withdraw Guilty Plea [to § 922(j)]. And this Court found none.”).
Numerous other district courts in this Circuit concur. United States v. Robinson, No. 1:23-cr-660, 2024 WL 2816025, at *1-3 (N.D. Ohio June 3, 2024) (“binding precent continues to constrain the Court to deny any facial attack upon § 922(g)(1)”); United States v. Caldwell, 2024 WL 2784340, at *2 (N.D. Ohio May 30, 2024) (“Bruen did not overturn Heller, McDonald, or Carey or otherwise relieve this Court of the obligation to follow Supreme Court and Sixth Circuit precedent.”); Richards, 2024 WL 1678942, at *2 (finding “the Sixth Circuit decision in Carey upholding the constitutionality of 18 U.S.C. § 922(g)(1) remains good law after Bruen and therefore remains binding precedent”) (collecting cases); Freeman, 2024 WL 348517, at *5; Atkins, 2023 WL 9166580, at *3 (observing that in Vaughn, the Sixth Circuit upheld the constitutionality of § 922(g)(1) without distinguishing between facial and as-applied challenges); United States v. Dorsey, No. 2:22-cr-20122-MSN, 2023 WL 8288965, at *5 & n.6 (W.D. Tenn. Nov. 30, 2023) (relying on Vaughn to find § 922(g)(1) constitutional without undertaking further historical analysis and noting that Vaughn involved both facial and as-applied challenges to § 922(g)(1)); United States v. Mackey, No. 2:23-cr-67, 2023 WL 8093071, *2 (S.D. Ohio Nov. 21, 2023) (citing Vaughn to hold that Carey remains binding precedent after Bruen); see also United States v. Brooks, 2023 WL 6880419, at *3 (E.D. Ky. Oct. 18, 2023) (“Without Sixth Circuit case law to the contrary, this Court finds that § 922(g)(1) is constitutional as applied to [defendant] despite the new test outlined in Bruen.”). But see United States v. Berry, Nos. 5:22-cr-536, 5:23-cr-222, 4:23-cr-503, 2024 WL 114720, at *9 (N.D. Ohio Mar. 15, 2024) (rejecting pre-Bruen case law in an as-applied challenge because these cases do not “establish[] a historical tradition of felon dispossession as Bruen requires”); United States v. Williams, No. 23-cr-20201, 2024 WL 731932, at *5-6 (E.D. Mich. Feb. 22, 2024) (determining that Heller and pre-Bruen case law do not resolve an as-applied challenge to § 922(g)(1) but, instead, a constitutional analysis using the test from Bruen is required) (appeal filed Mar. 25, 2024); United States v. Goins, 647 F.Supp.3d 538, 54244 (E.D. Ky. 2022) (rejecting the application of pre-Bruen caselaw in an as-applied challenge to § 922(g)(1)) (appeal filed Sept. 25, 2023).
Even courts questioning the continued viability of pre-Bruen caselaw have not held that § 922(g)(1) is unconstitutional on its face. In United State v. Berry, the court rejected the continuing viability of Sixth Circuit pre-Bruen caselaw because in Carey, Whisnant, Khami, and Frazier, the Sixth Circuit did not undertake the historical analysis required by Bruen. 2024 WL 1141720, at *9. Nevertheless, after conducting the full historical analysis, the Court held that § 922(g)(1) remains constitutional as applied to the defendants whose prior felonies included robbery, an offense “distinctly similar” to the historical analogues “supporting disarmament based on dangerousness.” Id. at *20. Nearly one month later, Judge Calabrese observed that § 922(g)(1) is facially constitutional “as a matter of law” because a statute is only unconstitutional on its face if “‘no set of circumstances exist[]'” under which the statute may be constitutionally applied. United States v. Hofstettler, 2024 WL 1548982, at *6 (N.D. Ohio Apr. 10, 2024) (observing that in Berry, the court found § 922(g)(1) could be constitutionally applied as to three defendants with predicate felonies of robbery) (quoting United States v. Salerno, 481 U.S. 739, 745 (1987)) (appeal filed May 9, 2024).
“In the two years since Bruen was decided, . . . the vast majority of courts to address the issue, including this one and other courts within the Sixth Circuit, have concluded that the ruling in Bruen did not ‘overturn, re-write, or alter' the Supreme Court's prior determinations that restrictions on the right of convicted felons to possess weapons are constitutional.” Caldwell, 2024 WL 2784340, at *3 (collecting cases as of May 30, 2024); United States v. Bluer, No. 22-cr-20557, 2023 WL 3309844, at *6 (E.D. Mich. May 8, 2023) (recognizing the “overwhelming consensus that Bruen is no barrier to a § 922(g)(1) prosecution”); United States v. Davis, No. 5:19-cr-159, 2023 WL 373172, at *2 (E.D. Ky. Jan. 24, 2023) (“Bruen did nothing to change the prohibition on the possession of firearms by felons, which remains well-settled law.”). Thus, on its face, § 922(g)(1) remains constitutional. Bivens, 2023 WL 8101846, at *4 & n.4 (summarizing “the current state of the law in the Sixth Circuit” as of November 21, 2023).
This Court is bound by pre-Bruen, Sixth Circuit caselaw holding that § 922(g)(1) is facially constitutional in response to a Second Amendment challenge. See Hutto v. Davis, 454 U.S. 370, 374 (1982) (observing that lower federal courts must follow precedent); Salmi v. Secretary of Health & Human Svcs, 774 F.2d 685, 689 (6th Cir. 1985) (observing that Sixth Circuit cases remain binding authority unless modified by a Supreme Court decision or overturned by the Sixth Circuit en banc (citation omitted)).
C. Section 922(g)(1) is Constitutional as Applied to Defendant
Although the Court finds that Supreme Court and Sixth Circuit precedent dictate that § 922(g)(1) does not violate the Second Amendment, Defendant also brings an as applied challenge [Doc. 24 pp. 1 - 2, 19]. “Heller only established a presumption that such bans [on the possession of firearms] were lawful; it did not invite courts onto an analytical off-ramp to avoid constitutional analysis.” Tyler v. Hillsdale Co. Sheriff's Dept., 837 F.3d 678, 686 (6th Cir. 2016) (en banc) (addressing pre-Bruen as-applied challenge to § 922(g)(4), which prohibits possession of firearms by drug abusers). Heller's guidance that laws prohibiting felons from possessing firearms are presumptively lawful implies that a firearms “‘ban could be unconstitutional in the face of an as-applied challenge.'” Id. (quoting United States v. Williams, 616 F.3d 685, 692 (7th Cir. 2010)); Bivens, 2023 WL 8101846, at *4 (quoting Tyler and Williams). Thus, the undersigned turns to the test from Bruen.
As stated above, Bruen requires the Court to “ask (1) whether the Second Amendment's plain text protects the conduct and, if so, (2) whether the government can justify the law by demonstrating consistency with the Nation's history of firearm regulation.” Ramadan, 2023 WL 663429, at *2 (citing Bruen, 597 U.S. at 24).
(1) Textual Analysis
The first part of the Bruen test requires the court to examine whether the plain text of the Second Amendment covers Defendant's conduct. Defendant argues that the Second Amendment's protection of possessing a firearm in one's home applies to him because he is a member of “the people” [Doc. 24 p. 7; Doc. 31 pp. 2-7]. The Government counters that Defendant does not enjoy Second Amendment protection, which Bruen expressly reserved for “law-abiding” individuals [Doc. 27 p. 4].
The plain text of the Second Amendment secures the right to keep and bear arms to “the people.” U.S. Const., Amt 2. Pre-Bruen caselaw in this Circuit recognized that felons are disqualified from being among the people to whom Second Amendment rights are guaranteed. In Carey, the Sixth Circuit held that the Second Amendment right to possess a firearm is “‘specifically limited in the case of felon prohibitions'” and that “a felon's right, or lack thereof, to possess a firearm does not fall under the plain text of the Second Amendment[.]” Bivens, 2023 WL 8101846, at *4 (quoting Carey, 602 F.3d at 740-41). “The Second Amendment's core right allows ‘law-abiding, responsible citizens to use arms in defense of hearth and home.'” Stimmel v. Sessions, 879 F.3d 198, 203 (6th Cir. 2018) (quoting Heller, 554 U.S. at 635). “By acknowledging that ‘law-abiding, responsible citizens' are at the core of the Amendment's protections, the Heller Court presumed certain individuals can be ‘disqualified' from exercising Second Amendment rights.” Id. (analyzing § 922(g)(9)) (citing Heller, 554 U.S. at 635). Felons by definition are not law abiding and, as Heller recognized, are so disqualified: “[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons[.]” Heller, 554 U.S. at 626; see Stimmel, 879 F.3d at 203; Carey, 602 F.3d at 740-41.
As argued by the Government [Doc. 27 p. 4], Bruen states that Second Amendment protections are available to “law-abiding citizens.” 597 U.S. at 26, 29, 60. In Bruen, the Supreme Court rejected a law that “‘prevent[ed] law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms.'” United States v. El Bey, No. 1:21-cr-110, 2024 WL 22701, at *2 (S.D. Ohio Jan. 2, 2024) (quoting Bruen, 597 U.S. at 71). “The rights of non-lawabiding citizens, like felons, were not at issue.” Id.; Gleaves, 654 F.Supp.3d at 650 (recognizing that “the majority opinion [in Bruen] speaks in terms of ‘law-abiding' citizens” eleven times, “something that, by definition, felons in possession of a firearm are not” but declining to “weigh[]-in on the simmering debate about whether a felon is no longer one ‘of the people, mentioned in the Second Amendment”); Bivens, 2023 WL 8101846, at *4 (“Section 922(g)(1)'s ban on felons possessing firearms remains presumptively lawful because felons are not among ‘the people' covered by the plain text of the Second Amendment.”).
Here, Defendant argues that as an American citizen and lifelong member of the national community, he is a member of “the people” afforded rights under the Second Amendment [Doc. 24 p. 9]. Defendant points the Court to the Ninth Circuit's recent decision in United States v. Duarte, which rejected reliance on pre-Bruen caselaw, Heller's dicta on felon-in-possession laws, and Bruen's use of the terms “law-abiding” and “responsible” to determine the constitutionality of § 922(g)(1). 101 F.4th 657, 666-70 (9th Cir. 2024). The Duarte court held the defendant “is one of ‘the people' because he is an American citizen” and found this interpretation to be consistent with the common person's understanding of “the people” at the time of the founding era. Id. at 671, 673-76 (citing Heller, 554 U.S. 580-81; Bruen, 597 U.S. at 70).
In Duarte, the Ninth Circuit joined the Second, Third, Fifth, and Eleventh Circuits in defining “the people” as all Americans who are part of the national community. Id. at 672 & n.5; see, e.g., United States v. Daniels, 77 F.4th 337, 342 (5th Cir. 2023) (concluding the defendant, a marijuana user is part of “the people” because he is part of “the political community”); Range v. Attorney Gen'l, 69 F.4th at 101, 103 (3rd Cir. 2023) (finding the defendant, a felon, is part of “the people” because the rights protected by the Second Amendment belong to all Americans); United States v. Jimenez-Shilon, 34 F.4th 1042, 1046 (11th Cir. 2022) (observing “even ... dangerous felons and those suffering from mental illness” are “indisputably part of ‘the people' ”); United States v. Jimenez, 895 F.3d 228, 233 (2d Cir. 2018) (concluding that all members of the “national community” are part of “the people”); see also Berry, 2024 WL 1141720, at *12 (defendants are part of “the people” because they are Americans); Williams, 2024 WL 731932, at *10 (“‘[T]he Second Amendment right is exercised individually and belongs to all Americans.'” (quoting Heller, 554 U.S. at 581)); Wright, 2024 WL 422156, at *3 (analyzing § 922(j) under Bruen and reasoning that defendant is covered by the plain text of the Second Amendment because he is an American citizen and, thus, a member of the political and national communities).
In Bruen, however, “the Court reaffirmed the pronouncements made in Heller, noting that the right to bear arms is ‘subject to certain reasonable, well-defined restrictions.'” Freeman, 2024 WL 348517, at *3 (quoting Bruen, 597 U.S. at 70) (other citation omitted). Moreover, the Court in Bruen reasoned that the Second Amendment “‘surely elevates above all other interests the right of law-abiding, responsible citizens to use arms' for self-defense.” Id. (quoting Bruen, 597 U.S. at 26 (emphasis added) (quoting Heller, 554 U.S. at 635)). As Justice Alito's concurrence suggests, “law-abiding” does not include felons. Bruen, 597 U.S. at 71-72 (observing that Bruen 's rejection of New York's restrictions on “law-abiding citizens” does not alter the Supreme Court's statements in “Heller or McDonald . . . about restrictions that may be imposed on the possession or carrying of guns”); see Gleaves, 654 F.Supp.3d at 650.
The Government argues that considering felons to be disqualified from “the people” is consistent with the Supreme Court's characterization of “the people” as “all members of the political community, not an unidentified subset” [Doc. 27 p. 9 (quoting Heller, 554 U.S. at 580)]. It maintains that both in the founding era and currently, members of the political community are understood to enjoy certain rights, such as the right to hold public office, to serve on juries, and to bear arms [Id. at 9-10 (citations omitted)]. And, as the Government points out [Id. at 4], “a felony conviction triggers a number of disabilities, many of which impact fundamental constitutional rights.” Tyler, 837 F.3d at 688 n.9 (citation omitted). Felons may be excluded from voting, serving on a jury, or holding public office. See 28 U.S.C. § 1865(b)(5) (excluding from jury service those
At least one court has suggested that whether a defendant is a member of “the people” is not the right question. Wilkerson, 2024 WL 1506825, at *4. “The appropriate initial step under Bruen instead asks a question easier to answer-specifically, whether § 922(g)(1) regulates an individual's conduct that is protected by the Second Amendment.” Id. There, the court found that the Second Amendment's “plain text encompasses possession of a firearm” and, thus, defendant's alleged possession of a pistol comes within the amendment's plain text. Id. convicted of a crime punishable by imprisonment for more than one year and whose civil rights have not been restored); Richardson v. Ramirez, 418 U.S. 24, 54-56 (1974) (holding that California may properly exclude felons who have completed their sentences from voting without running afoul of the Equal Protection Clause); United States v. Cassidy, 899 F.2d 543, 549 (recognizing that a state may exclude felons from voting, holding public office, and serving on a jury).
Because felons are not members of “the people,” Defendant's conduct is not protected by the Second Amendment, and his as-applied challenge fails the first part of the Bruen test.
(2) Historical Analogue
Bruen's second prong and the requirement of a historical analogue only comes into play if the first prong applies. Bruen, 597 U.S. at 24; Bivens, 2023 WL 8101846, at *4-5. Because the first prong of the Bruen test does not apply, the Government does not have to show that the regulation of Defendant's conduct comports with the Nation's historical regulation ‘of firearms.However, if the Court were to reach this question, it would find § 922(g)(1) constitutional as applied to Defendant, whose felonies are indicative of his dangerousness.
Here, the Government presents historical analogues to § 922(g)(1) in the form of English laws, Revolutionary-War era laws, ratification proposals, and punishments for felonies at the time of the country's founding [Doc. 27 pp. 11-16]. And numerous courts applying the Bruen historical tradition test have found that § 922(g)(1) has historical analogues. See, e.g., Wilkenson, 2024 WL 1506825, at *5-6; El Bey, 2024 WL 22701, at *3; Mackey, 2023 WL 8093071, at *3-4); Omar, 2023 WL 7526045, at *4; United States v. Blue, No. 2:23-cr-20122-JPM-1, 2023 WL 8292375, at *3-5 (W.D. Tenn. Oct. 31, 2023).
Even courts which have found § 922(g)(1) unconstitutional as applied “do not support the view that Congress lacks the ability to disarm dangerous felons.” Robinson, 2024 WL 2816025, at *4; (N.D. Ohio June 3, 2024); Caldwell, 2024 WL 2784340, at *4 (“[E]ven if the Court had ascribed to the minority view, it would have found, at the very least, § 922(g)(1) is constitutional as applied to individuals like Caldwell who are dangerous felons.”); see also United States v. Gonzalez, No. 22-1242, 2022 WL 4376074, at *2 (7th Cir. Sept. 22, 2022) (finding that it would be “frivolous” to argue that § 922(g)(1) is unconstitutional as applied to someone convicted of a violent felony). In Berry, the court affirmed the constitutionality of § 922(g)(1) as applied to defendants previously convicted of robbery because “Ohio's felony robbery offense is ‘distinctly similar' to the historical predicates on which the United States relies that support disarmament based on dangerousness.” 2024 WL 1141720, at *20. See also United States v. Daniels, 77 F.4th 337, 352 (5th Cir. 2023) (“[T]here is an undeniable throughline in all those historical sources: Founding-era governments took guns away from persons perceived to be dangerous.”) (petition for certiorari filed); Wilkinson, 2024 WL 1506825, at *6 (“[T]he history and tradition of this country's arms regulations confirms that historic analogues exist to justify the comparably modern legislative decision to disarm felons deemed inherently dangerous to society by Congress.”).
Here, Defendant Keller has a prior federal conviction for drug trafficking and use of a firearm in furtherance of drug trafficking. “[D]rug trafficking is a serious offense that, in itself, poses a danger to the community.” United States v. Stone, 608 F.3d 939 n.6 (6th Cir. 2010) (citation omitted); see Robinson, 2024 WL 2816025, at *4 (collecting cases rejecting as-applied challenges to § 922(g)(1) when defendant previously convicted of drug trafficking); Wilkinson, 2024 WL 1506825, at *7 (rejecting “as applied” challenge to § 922(g)(1) as to defendant with prior conviction for drug trafficking because “[s]erious drug offenses, like distribution or possession with intent to distribute, are inherently dangerous and often violent offenses that justify disarming those who commit them”) (citation omitted)). Here, the dangerousness of drug trafficking was increased by Defendant's possession of a gun in furtherance thereof. Additionally, Defendant has other violent felony convictions for reckless endangerment with a weapon and statutory rape. Finally, the allegations against Defendant in the instant case-that he shot toward law enforcement six times-confirm this Court's finding that Defendant is a dangerous felon. See Berry, 2024 WL 1141720, *20 (finding the escalating seriousness of defendant's criminal histories “confirmed” the “constitutional justification” for applying § 922(g)(1) to them). Accordingly, the Court finds § 922(g)(1) is constitutional as applied to Defendant Keller.
III. CONCLUSION
After carefully considering the parties' arguments and the relevant legal authorities, the undersigned finds 18 U.S.C. § 922(g)(1) is constitutional both on its face and as applied to Defendant. Accordingly, the undersigned respectfully RECOMMENDS that Defendant's Motion to Dismiss Indictment [Doc. 24] be denied.
Any objections to this report and recommendation must be served and filed within fourteen (14) days after service of a copy of this recommended disposition on the objecting party. Fed. R. Crim. P. 59(b)(2) (as amended). Failure to file objections within the time specified waives the right to review by the District Court. Fed. R. Crim. P. 59(b)(2); see United States v. Branch, 537 F.3d 582, 587 (6th. Cir. 2008); see also Thomas v. Arn, 474 U.S. 140, 155 (1985) (providing that failure to file objections in compliance with the required time period waives the right to appeal the District Court's order). The District Court need not provide de novo review where objections to this report and recommendation are frivolous, conclusive, or general. Mira v. Marshall, 806 F.2d 636, 637 (6th Cir. 1986). Only specific objections are reserved for appellate review. Smith v. Detroit Fed. of Tchrs, 829 F.2d 1370, 1373 (6th Cir. 1987).